MOLLOY v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION FILED. Signed by Judge Renee Marie Bumb on 12/16/14. (js)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TODD A. MOLLOY,
Civil Action No. 13-06035
Plaintiff,
OPINION

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.

Daniel Sylvester Jones
Law Offices of Harry J. Binder & Charles E. Binder
60 East 42nd Street
Suite 520
New York, NY 10165
Attorney for Plaintiff
Daniel Robert Janes
Social Security Administration
Office of the General Counsel
26 Federal Plaza
Room 3904
New York, NY 10278
Attorney for Defendant
BUMB, United States District Judge:
Plaintiff Todd A. Molloy (the “Plaintiff”) seeks judicial
review pursuant to 42 U.S.C. § 405(g) of the final decision of
the Commissioner of Social Security (the “Commissioner”) denying
his application for social security disability benefits (“SSD”).
For the reasons that follow, this Court will VACATE the

1

Commissioner’s final decision and REMAND this matter for further
proceedings consistent with this Opinion.
I.

Standard of Review
A reviewing court must uphold the Commissioner of Social

Security’s factual findings if they are supported by
“substantial evidence,” even if the court would have decided the
inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). “Substantial evidence” means
“‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where the
evidence is susceptible to “more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
Ahern v. Comm’r of Soc. Sec., 165 F. App’x 212, 215 (3d Cir.
2006) (citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984);
Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.
1986)).
If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.

2

Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)). Stated differently,
[Unless] the [Commissioner] has analyzed all evidence
and has sufficiently explained the weight he has given
to obviously probative exhibits, to say that his
decision is supported by substantial evidence
approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether
the conclusions reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted); see also Guerrero v.
Comm’r of Soc. Sec., No. 05-1709, 2006 WL 1722356, *3 (D.N.J.
June 19, 2006) (“The [administrative law judge’s] responsibility
is to analyze all the evidence and to provide adequate
explanations when disregarding portions of it.”), aff’d, 249 F.
App’x 289 (3d Cir. 2007).
While the Commissioner’s decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections.” Burnett v. Comm’r of Soc. Sec.,
220 F.3d 112, 122 (3d Cir. 2000); see also Fargnoli, 247 F.3d at
42 (“Although we do not expect the [administrative law judge] to
make reference to every relevant treatment note in a case where
the claimant . . . has voluminous medical records, we do expect
the ALJ, as the factfinder, to consider and evaluate the medical
3

evidence in the record consistent with his responsibilities
under the regulations and case law.”).
In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards. See Friedberg v. Schweiker, 721 F.2d
445, 447 (3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). The court’s review of legal issues is plenary.
Sykes, 228 F.3d at 262 (citing Schaudeck v. Comm’r of Soc. Sec.,
181 F.3d 429, 431 (3d Cir. 1999)).
“Disability” Defined
The Social Security Act defines “disability” as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 1382c(a)(3)(B).
4

The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant’s disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner’s inquiry at each
step of this analysis:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 1520(a). If a claimant
is found to be engaged in substantial activity, the
disability claim will be denied. Bowen v. Yuckert, 482
U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
In step two, the Commissioner must determine whether
the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show
that [his] impairments are “severe,” [he] is
ineligible for disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity 1 to
perform [his] past relevant work. 20 C.F.R. §
404.1520(d). The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
1

“Residual functional capacity” is the most the claimant
can still do despite the limitations caused by his impairments.
20 C.F.R. § 404.1545(a)(1).
5

is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R. §
404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national
economy which the claimant can perform, consistent
with [his] medical impairments, age, education, past
work experience, and residual functional capacity. The
ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether [he] is
capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984).
II.

Procedural Background
On August 19, 2009, Plaintiff filed an application for SSD,

alleging a disability onset date of February 10, 2009.
(Administrative Record “R.” 252-55.) The claim was denied
initially and again upon reconsideration. (Id. at 89-96.)
Plaintiff requested a Hearing before an Administrative Law Judge
(“ALJ”) on August 2, 2010. (Id. at 97.) The Honorable Jonathan
L. Wesner held a hearing on April 19, 2011, at which Plaintiff
appeared and was represented by counsel. (Id. at 50-65.) The ALJ
issued his decision on May 9, 2011, finding that Plaintiff was
not disabled and denying SSD. (Id. at 68-78.)
Plaintiff requested review of the ALJ’s decision, and the
Appeals Council vacated the decision and remanded for further
proceedings. (Id. at 85-87.) In particular, the Appeals Council
directed the ALJ to:
•

Update the medical record and obtain additional
evidence regarding Plaintiff’s impairments;
6

•

Further evaluate the claimant’s depression in
accordance with 20 C.F.R. 404.1520a;

•

Give further consideration to Plaintiff’s RFC, and in
so doing evaluate the opinions of the treating and
nontreating sources as well as the nonexamining
sources; and

•

If warranted, obtain evidence from a vocational
expert.

The ALJ held a second hearing on July 16, 2012 (id. at 2347), and issued a decision on October 3, 2012 again finding that
Plaintiff was not disabled and denying benefits (id. at 6-17).
Plaintiff requested review of the ALJ’s decision, which was
denied on May 31, 2013. (Id. at 1-5.) Thus, the ALJ’s decision
became the final decision of the Commissioner. See 20 C.F.R.
§ 404.981.
III.

Factual Background
Plaintiff was born in 1979 and was 29 years old at the

alleged date of onset. (R. 252.) He has a high school education
and previously worked as a cable installer and a retail store
manager. (Id. at 284, 41.) On February 10, 2009, Plaintiff
underwent surgery for removal of a right maxillary cyst, and
later developed an infection. (Id. at 343-44, 397, 405.)
Although the infection was resolved within a month, Plaintiff
developed the symptoms and impairments that formed the basis of
his application for benefits. (Id. at 54.)

7

a. Plaintiff’s 2011 Hearing Testimony
At the initial hearing before the ALJ, Plaintiff testified
that he was unable to work due to his frequent migraines and
vertigo. (Id. at 56.) He claims to have at least one migraine a
day, and for the worst ones, he would go to bed and close the
blinds. (Id. at 54.) Although he takes medication for his
migraines, which sometimes “take[s] the edge off,” it does not
offer complete relief. (Id. at 57.) His migraines are
exacerbated by light and sound. (Id. at 59.)
Plaintiff experiences vertigo at “random” times. He later
testified, however, that the vertigo was “almost always present
to one degree.” (Id. at 58.) Because of the vertigo, he tries
not to drive further than the supermarket, which is
approximately three miles away. (Id. at 57.)
He spends his days reading the Bible, or using the
computer, and sometimes tries to assist his wife with homeschooling his daughter. (Id. at 58.) After about 15 minutes,
however, he needs to take a break for approximately 30-45
minutes. (Id.)
Plaintiff further testified that he is unable to walk long
distances or sit for a prolonged time without changing
positions. (Id. at 60.) At least once a week, Plaintiff requires
assistance with showering because of his vertigo, and he dresses
while lying down in bed. (Id. at 61.)
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Plaintiff also has been diagnosed with sleep apnea, but he
uses a CPAP machine that has completely resolved any related
issues. (Id. at 55.)
b. Plaintiff’s 2012 Hearing Testimony
At the remand hearing in 2012, Plaintiff testified that his
sleep has not been as restful over the prior six months despite
his use of the CPAP but that the doctor believes this is a side
effect of his medication. (Id. at 28.) He further testified that
he has migraines several times a day that last for one or more
hours. (Id. at 30.)
He began taking Lyrica in 2010 for his fibromyalgia, and
testified that it subsides his most severe migraines within
approximately five minutes, but then it renders him virtually
immobile because of the effects on his vertigo. (Id. at 29.) He
uses Lyrica approximately 2-3 times per month.
Plaintiff testified that the vertigo is “near-constant” but
varies in severity. (Id. at 30.) However, it causes him to
stumble and fall at least once daily.
As to his activities, Plaintiff usually awakens around
12:00 or 1:00 p.m., and tries to assist his wife with homeschooling his daughter. (Id. at 33.) He spends a lot of time on
the computer, but he switches activities approximately every 3045 minutes. He continues to drive about once a week, taking his
wife to the store. He also drove himself to the hearing. (Id. at
9

34.) He testified that he is unable to shop at length but is
able to pick up a few things at the store. (Id. at 31-32, 34.)
He stated that he is no longer able to shower because it makes
him dizzy, but he is usually able to bathe himself without
assistance. (Id. at 34-35.) He also prepares premade meals. (Id.
at 35.)
According to Plaintiff, he can stand for less than 10
minutes and can only sit for 30 minutes at a time. (Id. at 36.)
He also testified that he is able to lift and carry a few books,
or pick up his daughter briefly. (Id. at 37.) He is involved in
his church and tries to attend services three times a week.
However, he stated that he does not interact with anyone while
there and sometimes sits in the vestibule because of the noise.
(Id. at 37.)
c. Medical Evidence
On March 30, 2009, Plaintiff had an MRI that showed “mild
cerebellar tonsillar ectopia without evidence of Chiari
malformation,” and a 12-mm pineal cyst. (Id. at 602.) No other
abnormalities were noted.
Dr. Stephen Bromley began treating Plaintiff on April 23,
2009. (Id. at 362.) Plaintiff reported headache in the form of
head pressure, fatigue, and dizziness. Dr. Bromley recorded
maxillary tenderness, but otherwise noted no limitations in his
examination. (See id. at 363.) He diagnosed, inter alia,
10

headache syndrome suggestive of migraine variant, as well as
non-specific dizziness, and noted a pineal cyst that was “likely
incidental.” (Id. at 364.)
On June 23, 2009, Dr. Bromley again saw Plaintiff who
reported intermittent headache and dizziness. (Id. at 359.)
Plaintiff described two types of headaches: a short-acting pain
and a longer unilateral pain. The dizziness was in the form of
“slight room movement but is essentially nonspecific.” (Id. at
359-60.) An earlier MRI showed a “benign” 12-mm pineal cyst but
no strokes or bleeds, while a CT showed no osteomyelitis. (Id.)
Dr. Bromley noted full motor and sensory functions, but mild
neck spasm and generalized anxiety. (Id. at 360.) Dr. Bromley
prescribed medication for the dizziness and migraines, and
recommended a sleep study to address Plaintiff’s insomnia. (Id.)
On September 17, 2009, Dr. Stephen Akers reported that
Plaintiff had participated in a sleep study that demonstrated
severe sleep apnea but that it was eliminated with the use of a
CPAP. (Id. at 407.)
On October 30, 2009, a hospital examination showed full
range of motion, with no limitation, upper extremity strength of
5/5, intact sensation, and no tenderness to palpitation. (Id. at
536-37.) An MRI of Plaintiff’s lumbar spine and a CT scan of his
cervical spine revealed no abnormalities. (Id. at 542-43.) The

11

doctor concluded that there appeared to be no link between his
spine and the symptoms he reported experiencing. (Id. at 537.)
On January 11, 2010, Dr. Robert J. Waters, state agency
psychologist, conducted a mental status examination. (Id. at
463-65.) Plaintiff informed Dr. Waters that he is unable to work
because of migraines, episodic pain throughout his body, and
near constant dizziness. He also reported that he uses a CPAP
machine that “works well” and allows him to get “good sleep.”
(Id. at 463.) Plaintiff further stated that while he has been
depressed it is “mild” or “minor at best.” (Id.) Dr. Waters
recorded that Plaintiff is able to perform chores and tasks on a
limited basis, is able to shower, groom, and feed himself, shop
independently when necessary, and drive on a limited basis. (Id.
at 464.) He also stated that he enjoys reading the Bible, going
to church, listening to music, and singing. His gait and posture
were unremarkable and his concentration was intact. (Id. at
465.) Dr. Waters concluded that Plaintiff’s “moderate to severe
limitations are due mainly to his physical status. His mental
status plays a less significant role in his occupational
limitations. His vertigo presents his most significant obstacle
to adapting to a typical work environment.” (Id. at 465.)
On February 3, 2010, Dr. Deogracias Bustos, state agency
medical consultant completed a physical RFC assessment. (Id. at
485-92.) He determined that Plaintiff could occasionally lift
12

and carry up to 20 pounds, frequently lift and carry up to 10
pounds, stand or walk at least 2 hours, and sit for about 6
hours in a day. He further opined that Plaintiff had no
limitations in pushing or pulling, and could occasionally climb
stairs, balance, stoop, kneel, crouch, and crawl. However,
Plaintiff should avoid concentrated exposure to extreme cold or
heat, wetness, humidity, vibration, and fumes, and avoid all
exposure to noise and hazards. Dr. Bustos concluded that the
degree of Plaintiff’s alleged difficulties is not totally
supported by objective evidence. (Id. at 490.) Dr. Bustos’
assessment was affirmed by Dr. Jyothsna Shastry on June 30,
2010. (Id. at 493.)
On March 15, 2010, a new MRI was taken and showed “mild
cerebellar tonsillar ectopia measuring 5 mm which is at the
borderline for a Chiari I malformation.” 2 (Id. at 601.) The
radiologist noted that this “can be a cause for headaches.” The
MRI also showed a “stable” 12 mm pineal cyst but was otherwise
unremarkable. (Id.)

2

“Type I Chiari malformation involves the extension of the
cerebellar tonsils (the lower part of the cerebellum) into the
foramen magnum, without involving the brain stem. Normally, only
the spinal cord passes through this opening. Type I, which may
not cause symptom, is the most common form.” Young v. Colvin,
No. 13-248, 2014 WL 4918325, at *3 n.1 (M.D. Pa. Sept. 30, 2014)
(citing http://www.ninds.nih.gov/disorders/chiari/detail_
chiari.htm (last visited September 25, 2014)).
13

On April 8, 2010, Dr. David Condoluci, an infectious
disease specialist, wrote a letter noting that Plaintiff has had
vertigo and recurrent migraines since December 2009. (Id. at
598.) An examination conducted at that time was unremarkable.
Dr. Condoluci ran serologies, but they were negative. He
reported a normal blood count, an elevated C-reactive protein, 3
and evidence of a previous parvovirus infection. Dr. Condoluci
further noted that an MRI showed a stage I Chiari malformation.
Dr. Condoluci stated, “[b]ecause of the persistent vertigo,
[plaintiff] has been unable to work; therefore, the [sic]
pursuing evaluation by a neurosurgical specialist and we gave
him decreasing doses of Prednasone over the next several weeks.”
He further stated that Plaintiff was a “work-up in progress”
because of his vertigo, “but it is clear that he is not able to
work because of the severe vertiginous episodes that he has.”
(Id. at 598.)
On April 21, Plaintiff saw Dr. Alan Turtz for a
neurosurgical follow-up. Plaintiff reported lightheadedness when
he gets up, headache, random pains, a visual disruption, and
some mental processing difficulty. (Id. at 599.) Upon
examination, Plaintiff exhibited 5/5 motor strength and normal

3

A C-reactive protein is a “marker of systemic
inflammation.” See Heim v. Life Ins. Co. of N. Am., No. 10-1567,
2012 WL 947137, at *1 n.4 (E.D. Pa. March 21, 2012).
14

sensory testing, as well as normal ambulation. However, he
became lightheaded when going from lying to sitting and sitting
to standing, and he stumbled once when walking. (Id.) Dr. Turtz
expressed doubt that Plaintiff’s symptoms were related to the
MRI findings. (Id. at 600.)
On June 14, 2011, Dr. Bromley completed a Multiple
Impairment Questionnaire that listed as diagnoses migraine
variant, vestibulopathy/chronic dizziness related to migraine,
fibromyalgia, and obstructive sleep apnea. 4 (Id. at 614-22.)
According to Dr. Bromley, Plaintiff’s prognosis was fair to poor
for a return to full functional capabilities. (Id.) Dr. Bromley
recorded that Plaintiff’s migraines are “generally triptanresponsive.” (Id.) Dr. Bromley opined that Plaintiff could sit
for 2 hours, and stand or walk for only 1 hour but must get up
and move around every 30 minutes to 1 hour. (Id. at 616.) He
further noted minimal limitations for using fingers or hands for
fine manipulations or reaching, as well as minimal limitations
for grasping, turning, and twisting objects. Despite these
benign findings, Dr. Bromley later opined that Plaintiff was
significantly limited in doing repetitive reaching, handling,
fingering or lifting because it would exacerbate his pain. (Id.

4

Although Dr. Bromley reports that he has treated Plaintiff
since June 23, 2009, the Record does not contain treatment notes
for the period December 1, 2009 to June 14, 2011.
15

at 617, 620.)

Dr. Bromley recorded that Plaintiff’s depressed

mood and anxiety are part of his symptom complex and contribute
to the severity of his limitations. (Id. at 618.) He also stated
that Plaintiff would need to break 6-7 times per day for an
average of 5-10 minutes, and he would likely be absent more than
3 times per month. (Id. at 617, 621.) Dr. Bromley concluded that
Plaintiff’s symptoms would frequently interfere with his
attention and concentration. (Id. at 617.)
On June 14, 2012, Dr. Joseph Yellin examined Plaintiff and
completed a headache questionnaire. The diagnoses are migraine
variant and tension headaches. (Id. at 623.) He listed
Plaintiff’s prognosis as “guarded.” Dr. Yellin recorded
Plaintiff as experiencing vertigo and dizziness, and noted that
Plaintiff had approximately 25 headaches a month that usually
lasted for only “minutes.” (Id. at 624.) Dr. Yellin opined that
Plaintiff was capable of tolerating a low stress job but would
be precluded from performing basic work activities during a
headache. (Id. at 627.) He further estimated that Plaintiff
would likely be absent more than 3 times per month due to his
impairment. (Id.) Dr. Yellin attached a report to the
questionnaire that provided further explanation. During Dr.
Yellin’s examination of Plaintiff, he appeared alert, oriented,
and cooperative with normal range of motion of the spine and
intact sensory examination. (Id. at 631.) In addition, fine
16

finger coordination was normal. Plaintiff complained, however,
of pain and tenderness when touched. Dr. Yellin also noted that
Plaintiff had difficulty walking but “the pattern of which is
not clearly characteristic [of] a specific neurologic
condition.” (Id.) He also stated that “[a]t this time, Mr.
Molloy is considered to be totally disabled in his prior
occupation and is not able to work.” (Id.)
d. The ALJ’s 2012 Decision
Applying the requisite five-step analysis described above,
the ALJ concluded that Plaintiff meets the insured status
requirements through December 31, 2014 but has not engaged in
substantial gainful activity since February 10, 2009, the
alleged onset date. (R. 11.) At Step Two, the ALJ found that
Plaintiff suffers the following severe impairments: maxillary
sinus cyst surgery with post-operative infection, migraine
headaches, vertigo, sleep apnea, and obesity. (Id. at 12.)
However, he determined that Plaintiff’s depression was not
severe. (Id.) At Step Three, the ALJ concluded that Plaintiff
does not have an impairment or combination of impairments that
meets or is medically equivalent to a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
The ALJ then considered Plaintiff’s residual functional
capacity (“RFC”), relying on the following medical evidence,
inter alia:
17

•

A report and Medical Source Statement from Dr.
Bromley, Plaintiff’s treating physician (Exs. 4F, 9F,
21F);

•

A letter from Dr. Condoluci, Plaintiff’s treating
physician (Ex. 19F);

•

A headache questionnaire completed by examining
physician Dr. Joseph Yellin (Ex. 22F); and

•

The opinion of Dr. Bustos, state agency medical
reviewer, which was confirmed by Dr. Shastry (Exs.
13F, 14F).

The ALJ determined that Plaintiff had the RFC to perform light
work as defined in 20 C.F.R. 404.1567(b), except that he could
lift 10 pounds occasionally, stand/walk at least 2 hours in an
8-hour workday, occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl, and can never climb ladders or
scaffolding. Additionally, he should avoid concentrated exposure
to temperature extremes, wetness, humidity, fumes, odors, dust,
and gases due to respiratory problems, avoid all exposure to
vibration, noise, and hazards, as well as heights due to
dizziness and vertigo, and avoid noise due to migraines. In
addition, he is limited to unskilled work. (Id. at 12.) In
crafting Plaintiff’s RFC, the ALJ found Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of
his symptoms to be
not fully credible, considering the claimant’s own
description of his activities and life style, the
degree of medical treatment required, discrepancies
between the claimant’s assertions and information
contained in the documentary reports, the reports of
the treating and examining practitioners, the
claimant’s demeanor during the hearing, the medical
18

history, the findings made on examination, and the
claimant’s assertions concerning his ability to work.
(Id. at 14.)
At Step Four, the ALJ determined that Plaintiff is unable
to perform any past relevant work. (Id. at 15.) The ALJ also
determined that Plaintiff was 29 years old on the alleged onset
date, which is defined as a “younger” individual under 20 C.F.R.
§ 416.963(c), has a high school education, and can communicate
in English. (Id. at 16.) Finally, at Step Five, the ALJ
determined, after consulting a vocational expert, that there are
significant numbers of jobs in the national economy that
Plaintiff can perform given his age, work experience, and RFC.
(Id. at 16-17.) Accordingly, the ALJ concluded that Plaintiff
has not been under a disability since February 10, 2009 through
the date of the decision.
IV.

Legal Analysis
On appeal, Plaintiff argues that the ALJ failed: (1) to

appropriately weigh the opinion of Plaintiff’s treating
physician, Dr. Bromley, as well as the opinions of Dr.
Condoluci, an infectious disease specialist, Dr. Yellin, an
examining neurologist, and Dr. Bustos, a nonexamining
consultant; and (2) to properly evaluate Plaintiff’s credibility
in accordance with Social Security Ruling (“SSR”) 96-7p. The
Court addresses each argument in turn.

19

a. The Opinions of Plaintiff’s Treating and
Examining Physicians 5
Plaintiff first argues that the ALJ did not give
appropriate weight to the testimony of his treating physician,
Dr. Bromley, with respect to the Doctor’s assessment of his
physical capabilities. Relatedly, Plaintiff argues that the ALJ
erred in rejecting the well-supported opinions of his treating
and examining physicians, Drs. Condoluci and Yellin. Ultimately,
Plaintiff contends that the ALJ should not have favored the
opinion of a state agency medical consultant, Dr. Bustos, who
reviewed an allegedly deficient record over those of Plaintiff’s
treating and examining physicians. Because the Court finds this
last argument most persuasive, it will address it first.
The Social Security Administration regulations regarding
the evaluation of evidence from treating physicians advises that
the opinion of a treating physician receives controlling weight
if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R.
§ 404.1527(c)(2). However, the ALJ is not bound to accept the
opinion of a treating physician without weighing it against the

5

This Court construes Plaintiff’s arguments regarding the
ALJ’s determinations with respect to her treating physician as a
challenge to the ALJ’s RFC finding at Step Four. See Johnson v.
Comm’r, 529 F.3d 198, 201 (3d Cir. 2008).

20

other medical evidence of record. Kent v. Schweiker, 710 F.2d
110, 115 n.5 (3d Cir. 1983). The existence of contradictory
medical evidence allows an ALJ to reject a treating physician’s
testimony. See Jones v. Sullivan, 954 F.2d 125, 128-29 (3d Cir.
1991). In rejecting a treating physician’s testimony, the ALJ
must explain his reasoning on the record. See Allen v. Bowen,
881 F.2d 37, 41 (3d Cir. 1989). Moreover, an ALJ may not make
speculative inferences from medical reports. Smith v. Califano,
637 F.2d 968, 972 (3d Cir. 1981); Cotter v. Harris, 642 F.2d
700, 704 (3d Cir. 1981). “While the ALJ must consider all of the
evidence and various influencing factors in making an RFC
determination, the final responsibility for deciding this issue
is reserved to the Commissioner; the ALJ is not required to
‘give any special significance to the source of an opinion on
issues reserved to the Commissioner . . . .’” Buckley v. Astrue,
No. 09-5058, 2010 WL 3035746, at *9 (D.N.J. Aug. 3, 2010)
(quoting 20 C.F.R. § 404.1527(e)(2)-(3)).
Ultimately, Plaintiff challenges the ALJ’s reliance on the
February 3, 2010 opinion of state agency consultant, Dr. Bustos,
arguing that he reviewed an incomplete record that did not
include the March 15, 2010 MRI findings or a medical source
statement concerning Plaintiff’s functional capacities. (See R.
491, 486.)
The Third Circuit has held that:
21

Although treating and examining physician opinions
often deserve more weight than the opinions of doctors
who review records, see, e.g., 20 C.F.R.
§ 404.1527(d)(1)-(2), “[t]he law is clear . . . that
the opinion of a treating physician does not bind the
ALJ on the issue of functional capacity,” Brown v.
Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011). State
agent opinions merit significant consideration as
well. See SSR 96–6p (“Because State agency medical and
psychological consultants ... are experts in the
Social Security disability programs, . . . 20 C.F.R.
§§ 404.1527(f) and 416.927(f) require [ALJs] . . . to
consider their findings of fact about the nature and
severity of an individual's impairment(s) . . . .”).
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011) (affirming denial of benefits where the ALJ afforded more
weight to the non-examining source); see also Williams v.
Astrue, 317 F. App’x 212, 215-16 (3d Cir. 2009) (finding
“substantial evidence supports ALJ’s decision to credit the nonexamining consultant’s findings over the examining consultant’s
assessment”). Thus, “[i]t is not necessarily error for the ALJ
to afford greater weight to the opinion of a state agency
medical consultant over the opinions of treating and examining
physicians or psychologists.” Kroh v. Colvin, No. 13-1533, 2014
WL 4384675, at *18 (M.D. Pa. Sept. 4, 2014). Indeed, the ALJ may
assign great weight to a non-examining, non-treating physician’s
opinion if the assessment is well-supported by the medical
evidence of record. See, e.g., Sassone v. Comm’r of Soc. Sec.,
165 F. App’x 954, 961 (3d Cir. 2006).

22

However, at least one court in this Circuit has held that
“[a]n RFC form prepared by a non-examining state agency medical
consultant cannot constitute substantial evidence where it is
not based upon the full medical record before the ALJ at the
time of hearing and decision, particularly where the medical
evidence suggests a deterioration in the claimant’s condition.”
See Kroh, 2014 WL 4384675, at *21 (citations omitted). In
addition, the Third Circuit and some courts in this Circuit have
found that an ALJ erred in relying on nontreating or
nonexamining medical sources where those medical sources did not
have access to the entire medical record. Cadillac v. Barnhart,
84 F. App’x 163, 169 (3d Cir. 2003) (“It was error for the ALJ
to have favored medical opinions based on an incomplete record
over those based on the complete record, and to have done so
because she injected her own medical opinion into the mix.”);
Santos v. Colvin, No. 13-1612, 2014 WL 5474576, at *16 (M.D.
Pa. Oct. 28, 2014) (“As discussed, in order for the ALJ to
properly give any weight to a medical opinion, the entire
medical record must have been available for and reviewed by the
non-examining, non-treating physician.”).
Here, Dr. Bustos provided a physical RFC assessment on
February 3, 2010 that was nearly identical to the RFC assigned
by the ALJ. (See R. 12-13.) Dr. Bustos’ assessment was confirmed
several months later on June 30, 2010 by Dr. Shastry. (Id. at
23

493.) This occurred subsequent to the March 15, 2010 MRI showing
a borderline Chiari I malformation that the radiologist
suggested could be a cause of Plaintiff’s migraines and the
April 2010 evaluations of Drs. Condoluci and Turtz. However, the
confirmation occurred prior to the June 14, 2011 questionnaire
completed by Plaintiff’s treating physician and the June 12,
2012 headache questionnaire completed by Dr. Yellin. In
confirming Dr. Bustos, Dr. Shastry commented that Plaintiff’s
recently-completed disability report alleged no worsening of
symptoms and thus recommended affirmation of Dr. Bustos’
opinion. (R. 493; see also id. at 296, 309.) In light of this
comment, it is unclear from the record whether Dr. Shastry even
reviewed the 2010 MRI and April 2010 evaluations (which should
have been available to him at the time of his review) prior to
affirming Dr. Bustos. By the time of the 2012 hearing, however,
Plaintiff had alleged a worsening of his symptoms. See supra.
Because the medical record that Dr. Bustos (and Dr.
Shastry) reviewed was incomplete and did not contain at the very
least a medical source statement from a treating physician, the
ALJ should have sought a new or updated medical expert opinion,
especially in light of the Appeals Council’s instruction that
the ALJ should update the medical evidence of record. 6 (R. 86.)

6

The Appeals Council also suggested that, if appropriate,
the ALJ could request the treating and nontreating sources to
24

Although the subsequent tests and examinations resulted in
mostly unremarkable findings, as discussed in depth below, it is
not this Court’s place to speculate in the first place as to how
a medical expert might account for these records in calculating
Plaintiff’s RFC. See Smith, 637 F.2d at 972 (ALJ may not draw
speculative inferences from medical reports); Cotter, 642 F.2d
at 704. It may be that the nonexamining medical expert would
agree with the ALJ that the extent of the limitations assigned
by the treating sources is inconsistent with the medical
evidence of record and the ALJ will reach the same conclusion as
here. 7 Indeed, that was Dr. Bustos’ conclusion in his initial
review. (See R. 490 (“The severity [and] duration of symptoms
are partially [proportionate] to the expected and partially
consistent to the [totality] of evidences. The degree of alleged
difficulties are not [totally] supported by objective
evidences.”). The problem is, however, that the medical
consultant must be given the opportunity to make that assessment
himself upon a complete medical record that includes a medical

submit additional evidence or further clarification of their
opinions. (R. 86.) The ALJ did not seek additional evidence or
clarification from the nontreating consultants despite receiving
additional evidence from the treating sources.
7

As discussed in depth below, the ALJ’s conclusions are
supported by substantial evidence.
25

source statement. 8 Accordingly, the Court will remand this matter
to permit the ALJ to update the medical expert’s opinion.
Although the Court is remanding this matter, it finds it
appropriate to address Plaintiff’s remaining arguments.
Plaintiff next challenges the ALJ’s findings with respect to Dr.
Bromley’s opinion. In relevant part, Dr. Bromley opined that
Plaintiff could sit for only 2 hours and stand for only 1 hour,
and would likely require frequent breaks and absences. (See,
e.g., R. 14 (citing Ex. 21F).) As the vocational expert
testified, these limitations would preclude all work. (Id. at
45-56.) The ALJ, however, found Dr. Bromley’s opinion to be only
“somewhat credible” because it was inconsistent with the
longitudinal medical record. (Id. at 14.) In particular, Dr.
Bromley opined that Plaintiff’s “depression and anxiety are part
of his symptom Complex” and “[t]here is significant psychogenic

8

Kroh, 2014 WL 4384675, at *21; Cadillac, 84 F. App’x at
169; Santos, 2014 WL 5474576, at *16; see also SSR 96-6p (“In
appropriate circumstances, opinions from State agency medical
and psychological consultants and other program physicians and
psychologists may be entitled to greater weight than the
opinions of treating or examining sources. For example, the
opinion of a State agency medical or psychological consultant or
other program physician or psychologist may be entitled to
greater weight than a treating source’s medical opinion if the
State agency medical or phychological consultant’s opinion is
based on a review of a complete case record that includes a
medical report from a specialist in the individual’s particular
impairment which provides more detailed and comprehensive
information than what was available to the individual’s treating
source.” (emphasis added)).
26

overlay.” (Id. at 618, 14.) However, Plaintiff himself
characterized his depression as “mild” or “minor”, thus
undermining Dr. Bromley’s conclusion. In addition, the ALJ noted
that Dr. Bromley’s opinion limited Plaintiff to standing for two
hours and sitting for one hour, although his impairments are
non-exertional. (Id. at 14.) Although the ALJ concluded that
Plaintiff was capable of performing less than the full range of
light exertional work, the severity of the limitations assessed
by Dr. Bromley are not supported by the objective medical
evidence of record or by Plaintiff’s description of his daily
activities. For example, Plaintiff testified that he spends his
time reading, using the computer, and watching his daughter play
– all sedentary activities that require a significant amount of
sitting. (See id. at 33.) 9 Moreover, while Plaintiff testified to
his inability to walk for long distances, there is no medical
evidence to support a daily limitation of only 1 hour of
standing or walking.
Several other aspects of Dr. Bromley’s opinion are also
inconsistent with the longitudinal medical record. For instance,

9

See also id. (“[O]f late, I really haven’t been able to do
a lot of anything except sit on the computer, and even then,
looking at a computer monitor just hurts. Sometimes I’ll just
grab and I’ll switch activities every so often, going from a
computer to reading a book to reading something to my
daughter . . . I’ll usually kind of just put my head back and
shut my eyes.”).
27

Dr. Bromley opined that Plaintiff showed some limitation in
using his arms for reaching and his fingers for fine
manipulations, but aside from Plaintiff’s fibromyalgia
diagnosis, there is no medical evidence supporting these
limitations. And, there is certainly no medical evidence to
support the conclusion that Plaintiff suffers “significant”
limitations in repetitive reaching, handling, fingering, or
lifting. 10 (See id. at 620; see also id. at 536-37 (finding full
range of motion, with no limitation, upper extremity strength of
5/5, intact sensation, and no tenderness to palpitation), 599
(exhibiting 5/5 motor strength and normal sensory testing, as
well as normal ambulation), 631 (“fine finger coordination was
normal”).) In addition, as the ALJ noted, Dr. Bromley explained
that Plaintiff’s migraines are generally triptan-responsive.
(Id. at 614.)
Plaintiff contends that Dr. Bromley’s opinion must be
accepted because it is well-supported by Plaintiff’s partial
response to medication, dizziness associated with ataxia and
unsteadiness, and positive tender points, as well as a sleep
study showing severe obstructive sleep apnea and an MRI showing

10

The Court also notes that, after generally concluding
that Plaintiff has “significant” limitations, he inexplicably
classifies all of the limitations in Plaintiff’s upper
extremities as “minimal.” (See R. 620, 617.) These conclusions
appear to be inconsistent.
28

a pineal cyst. (See Pl.’s Br. at 16 (citing R. 614).) Notably,
however, even Dr. Bromley agreed that the pineal cyst fails to
explain Plaintiff’s subjective symptomology. (See R. 462 (pineal
cyst is “incidental”), 360 (“benign” pineal cyst); see also id.
at 535 (repeat MRI on October 30, 2009 “was unremarkable except
the incidental finding of a pineal cyst”).) Furthermore, the
longitudinal medical record is rife with CTs and MRIs that
yielded “unremarkable” findings. (See, e.g., R. 359, 358, 376,
532-537 (“there does not appear to be any link between his spine
and symptoms that he is currently experiencing”), 542-43.) Dr.
Alan Turtz conducted a neurosurgical follow-up visit and
expressed his “doubt [that Plaintiff’s] symptoms are related to
any of the findings on his scan.” 11 (Id. at 600.) Thus, the Court
cannot conclude that the ALJ erred in finding the treating
physician’s opinion only somewhat credible.
Plaintiff next argues that the ALJ erred in rejecting Dr.
Yellin’s opinion that Plaintiff was unable to work due to his
migraines and tension headaches (see id. at 14 (citing Ex.
22F)). The ALJ accorded Dr. Yellin’s opinion “reduced weight”
because he found that it was based on “full credibility” from
Plaintiff and, here, the ALJ found Plaintiff less than credible.

11

Dr. Turtz noted that Plaintiff’s most recent MRI showed a
borderline Chiari malformation but apparently rejected the
radiologist’s suggestion that this may cause headaches. (See id.
at 599-600.)
29

(See id.) In addition to completing a headache questionnaire,
Dr. Yellin also submitted a report summarizing his neurological
examination of Plaintiff on June 14, 2012. (Id. at 629-31.)
Plaintiff argues that the ALJ failed to address Dr. Yellin’s
examination findings, which included notation of Plaintiff’s
“markedly unsteady” gait as well as Plaintiff’s complaints of
pain and tenderness when touched. (See id. at 631.) Setting
aside the fact that Dr. Yellin examined Plaintiff on a single
occasion, while Dr. Yellin noted Plaintiff’s gait, he explained
that it was not “clearly characteristic [of] a specific
neurologic condition.” (Id.) Furthermore, Plaintiff exhibited a
normal gait and posture, as well as normal sensory and motor
functioning at many other previous appointments. (See, e.g., id.
at 465, 360, 525-26, 531-32, 599-600.) As to the latter
“finding”, this notation merely reflects Plaintiff’s subjective
complaints of pain that, as noted by the ALJ, depends upon
Plaintiff’s credibility.
Plaintiff also argues that Dr. Yellin’s conclusions are
based on his review of Plaintiff’s other medical records, and
thus are well-supported. Dr. Yellin’s evaluation included a
review of certain notes and scans relating to Plaintiff’s
maxillary cyst, Plaintiff’s March 30, 2009, October 30, 2009,
and March 15, 2010 MRIs, and Dr. Turtz’s neurological
examination notes. (Id. at 630.) However, in summarizing these
30

records, Dr. Yellin acknowledged the benign findings of the
MRIs, 12 as well as Dr. Turtz’s “essentially [] normal
neurological examination with the exception of lightheadedness
on position changes.” (Id.) These mostly unremarkable medical
records in combination with Dr. Yellin’s summary of Plaintiff’s
complaints and symptoms support the ALJ’s conclusion that Dr.
Yellin’s opinion is largely dependent upon Plaintiff’s
subjective complaints of pain and symptoms, which the ALJ found
to be less than credible. 13 See infra. Finally, to the extent
that Plaintiff seeks to rely upon Dr. Yellin’s opinion that
Plaintiff is “unable to work,” this conclusion is on an issue
reserved to the Commissioner and thus the ALJ need not afford it
any special significance. See 20 C.F.R. § 404.1527(e)(1); SSR
96-5.
Plaintiff also challenges the ALJ’s rejection of Dr.
Condoluci’s opinion that Plaintiff is unable to work because of
his “severe vertiginous episodes.” (R. 598.) Although the ALJ

12

Specifically, the March 30, 2009 MRI showed a pineal cyst
and mild cerebellar tonsillar ectopia without evidence of Chiari
malformation; the March 15, 2010 MRI shows a borderline Chiari I
malformation but “[o]therwise, unremarkable examination;” and
the October 30, 2009 MRI of Plaintiff’s lumbar spine that
yielded no findings explaining Plaintiff’s symptoms.
13

It should also be noted that Dr. Yellin expressed his
belief that Plaintiff’s “headache management has not been
maximized and he should be on increased doses of medication.”
(R. 631.)
31

found that Plaintiff suffers from migraines and vertigo, he
rejected Dr. Condoluci’s conclusion that the impairments are
severe enough to be completely disabling because the ALJ found
Dr. Condoluci’s opinion was inconsistent with the medical
record. (Id. at 14.) For the same reasons set forth above in the
context of Drs. Bromley and Yellin, the Court finds that the
ALJ’s conclusions are supported by substantial evidence in the
record. (See, e.g., id. at 465, 360, 525-26, 531-32, 599-600.)
In addition, Dr. Condoluci’s April 8, 2010 letter sets forth no
functional limitations but simply asserts in a conclusory
fashion that Plaintiff’s vertigo prevents him from working. As
explained above, however, a treating physician’s opinion that a
plaintiff is “unable to work” or is “disabled” is not entitled
to any significant weight as it is an issue reserved to the
Commissioner. See 20 C.F.R. § 404.1527(e)(1); SSR 96-5. 14 Thus,

14

Moreover, while not specifically cited by the ALJ, Dr.
Condoluci’s opinion is inconsistent with his own examination
findings. Plaintiff presented to Dr. Condoluci with vertigo and
migraines, but his physical examination was “unremarkable.” (Id.
at 598.) Plaintiff was given a Medrol Dosepak and Dr. Condoluci
ordered several serologies but these came back negative.
Plaintiff’s blood count was normal, although a C-reactive
protein was elevated and he had evidence of a previous
infection. (Id.; see also id. at 601-10.) Dr. Condoluci also
noted, without comment, Plaintiff’s March 15, 2010 MRI findings.
Dr. Condoluci then prescribed treatment with prednisone and
recommended a neurosurgical evaluation. (Id.) As explained
above, Dr. Turtz examined Plaintiff a few weeks later and
expressed his doubt that Plaintiff’s symptoms were connected to
the MRI findings. (Id. at 599-600.)
32

the Court concludes that the ALJ provided sufficient
explanation, when viewed in context, for his rejection of Dr.
Condoluci’s opinion, and that rejection is supported by
substantial evidence.
b. Evaluation of Plaintiff’s Credibility
Plaintiff next claims that the ALJ erred in weighing
Plaintiff’s credibility and failed to provide sufficient
justification for rejecting Plaintiff’s subjective complaints of
pain. The Court disagrees.
An ALJ must consider the claimant’s subjective complaints
of pain; however, pain alone cannot be the basis for a finding
of disability. 42 U.S.C. § 423(d)(5)(A). Rather, “the subjective
complaints of pain must be accompanied by objective medical
evidence showing the existence of a condition that reasonably
could be expected to produce the alleged symptomalogy and
support a finding of disability.” Alward v. Comm’r of Soc. Sec.,
No. 08-3373, 2009 WL 4798263, at *7 (D.N.J. Dec. 8, 2009)
(citing Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir.
1992)). Moreover, “[i]t is the claimant’s burden to prove that
[his] subjective complaints of pain are substantiated by medical
evidence.” Id.
As the fact finder, the ALJ can “reject partially, or even
entirely, such subjective complains if they are not fully
credible.” Weber v. Massanari, 156 F. Supp. 2d 475, 485 (E.D.
33

Pa. 2001) (citation omitted). In doing so, “he must give some
indication of the evidence that he rejects and his reason(s) for
discounting that evidence.” Fargnoli, 247 F.3d at 43; see also
Burnett, 220 F.3d at 122; 20 C.F.R. § 404.1545(a)(1). It is
insufficient for an ALJ to make a conclusory statement regarding
a Plaintiff’s credibility. See SSR 96–7P (“It is not sufficient
to make a conclusory statement that ‘the individual's
allegations have been considered’ or that ‘the allegations are
(or are not) credible.’ ”). The ALJ “must consider the entire
case record, including the objective medical evidence, the
individual’s own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they
affect the individual, and any other relevant evidence in the
case record.” SSR 96-7p.
SSR 96-7p recognizes that an individual’s symptoms may
suggest a greater level of severity than can be shown by the
objective medical evidence. In those instances, the ALJ must
consider the following factors when assessing credibility: the
claimant’s daily activities, location, duration, frequency, and
intensity of pain or symptoms, factors that precipitate and
aggravate the symptoms, medication or treatment, other methods
of pain relief, and other factors. SSR 96-7p.

34

Here, the ALJ addressed Plaintiff’s testimony during both
hearings in which he described having vertigo and migraines
every day. (See R. 13-14.) The vertigo causes Plaintiff to
stumble and fall at least once a day. (Id.) Plaintiff explained
that he had tried two different medications for his vertigo, but
had discontinued use after experiencing adverse reactions. (Id.)
As for his migraines, Plaintiff takes injectable Lyrica, among
other medications, which effectively subsides the most severe
migraine within five minutes but he tries to take it only a few
times per month. Plaintiff also uses a CPAP machine nightly,
which permits him to sleep well. (Id.)
After setting forth this summary of Plaintiff’s testimony,
the ALJ concluded that “the claimant’s subjective complaints are
not fully credible, considering the claimant’s own description
of his activities and life style, the degree of medical
treatment required, discrepancies between the claimant’s
assertions and information contained in the documentary reports,
the reports of the treating and examining practitioners, the
claimant’s demeanor during the hearing, the medical history, the
findings made on examination, and the claimant’s assertions
concerning his ability to work.” (Id. at 13.) Plaintiff contends
that this explanation fails to provide specifics and thus, is
“so vague as to frustrate judicial review.” (Pl.’s Br. at 22.)
Although Plaintiff argues that the ALJ could certainly have
35

provided a more fulsome discussion – which may always be the
case - the Court finds that he has provided sufficient reasons
for discounting Plaintiff’s testimony, when viewed in the
context of the ALJ’s explanation of Plaintiff’s daily activities
and medical record, so as to permit adequate judicial review.
Moreover, the Court finds the ALJ’s conclusion is supported
by substantial evidence. Plaintiff explained that he does not
work because “the migraines and the vertigo just stop me during
the middle of the day.” (R. 56.) Plaintiff testified that he is
taking medication 15 that “take[s] the edge off” of his headaches
and sometimes helps him more than other times. (Id. at 57.) In
addition, the Lyrica he takes for his fibromyalgia stops his
most severe headaches within minutes. (Id. at 13.) He also
believed his Lyrica dosage could be increased to reduce the pain
in his extremities. (Id. at 38.) Dr. Yellin also expressed his
belief that Plaintiff’s “headache management has not been
maximized and he should be on increased doses of medication.”
(Id. at 631.) To the extent light and sound exacerbates or
precipitates Plaintiff’s migraines, he has employed certain
measures to avoid these factors, such as wearing earplugs and

15

Plaintiff testified to Dr. Bromley’s prescribed course of
treatment depending on the magnitude of Plaintiff’s headache:
first, over the counter pain relievers, then Fioricet, and then
either a pill or injectable form of Imitrex. (Id. at 28.)
36

refraining from driving at night. Notably, the RFC assessed by
the ALJ calls for avoiding noise and vibration.
As the ALJ acknowledged, Plaintiff described his daily
activities as reading the Bible or reading to his daughter,
playing puzzles with or home-schooling his daughter, and using
the computer. (Id. at 33, 58.) He is also able to care for his
own personal needs, cook dinner or prepared meals, lift and
carry books, or lift his 42-pound daughter. (Id. at 34-35.) He
is also involved in church activities three times a week. (Id.
at 37.) Plaintiff shops on a limited basis and, though he
testified that he only drives to the grocery store, he also
drove himself to the hearing before the ALJ. (Id. at 31-32.)
Plaintiff also told Dr. Waters that he is able to shop, perform
household chores on a limited basis, shower, groom, and feed
himself on an independent basis. (Id. at 464.) The extent of his
activities does not support Plaintiff’s assertion this his
impairments are so severe that they are disabling.
The vertigo is “near-constant” but varies in severity from
the room spinning a “tiny bit” to, at times, stumbling and
falling. (Id. at 30.) However, he only stumbles about once a day
and the record is replete with examination findings of full and
intact motor and sensory functions, as well as full ambulation
with a normal gait. (See, e.g., R. 360, 465, 525-26 (“steady
gait”, no cerebellar, sensory, or motor deficits), 531-32, 59937

600.) Moreover, while Dr. Yellin reported that Plaintiff’s gait
was “unsteady” on the day he was examined, he remarked that the
pattern was “not clearly characteristic [of] a specific
neurologic condition.” (Id. at 631.)
As the ALJ noted, there are also other inconsistencies
between Plaintiff’s testimony and the other evidence of record.
For example, Plaintiff testified that his migraines last “at
least an hour, if not longer.” However, he informed Dr. Yellin
that his headaches last for only “minutes.” (R. 624.) Indeed,
during an October 30, 2009 examination, Dr. Caroline Robiak
documented Plaintiff’s history of migraines since February 2009
and noted that Plaintiff “had one of these migraine attacks
during my exam, and it lasted for approximately 1 minute.” (Id.
at 531.) Thus, the Court finds that the ALJ’s credibility
assessment is supported by substantial evidence.
V.

Conclusion
For the reasons set forth above, the Court will VACATE the

decision of the ALJ and REMAND for further proceedings
consistent with this Opinion.

Date: December 16, 2014
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

38